Exploring the First Amendment on Constitution Day

by Kristin Taylor

In 2004, Senator Robert Byrd attached an amendment to a federal spending bill to create a new national observance: Constitution Day. This amendment required public schools and government offices “to provide educational programs to promote a better understanding of the Constitution.”

“I hope that kids understand that in this country, everything that we do in everyday life is touched upon by the Constitution of the United States,” he said in an interview. “It protects our liberties and it protects our freedom of speech. It protects our religion. It protects the freedom of speech so the newspapers can tell us the news every day.”

As a member of the Scholastic Press Rights Committee, it is especially important to me that students explore the First Amendment on Constitution Day, a critically important conversation to have in the face of today’s political climate and the rise of hate speech.

The 2017 Newseum’s State of the First Amendment survey showed an uptick in political speech this year — petition and assembly are two of the five freedoms, and almost half of those surveyed took advantage of them this year. It also showed overall agreement that a watchdog press is crucial, yet 22.5 percent of participants supported the claim that First Amendment freedom protection goes too far.

I suspect that number would be higher were the survey to happen today in the wake of Charlottesville and similar events.

Like many educators, I am troubled by the uptick in hate speech across the country and by white supremacists’ use of the term “free speech” to label rallies that are really about hatred. But as despicable as hate speech is, the Supreme Court recently reaffirmed, it is still protected by the First Amendment. It is not among the categories of unprotected speech defined by court cases over the years.

How can we face our students of color, our Jewish students or other students from marginalized groups and tell them that supporting the First Amendment means supporting the right of groups like the KKK or Nazis to spew this kind of hatred?

The American Bar Association has a good article to start the conversation. It outlines the difference between hateful speech and hateful acts using relevant court cases, and it defines libertarian and communitarian viewpoints on the issue. It also gives an example of how this played out on one college campus.

A more compelling question to ask our students is if they trust our government — and future governments — to decide what is offensive. Some European countries do, and this suggests that democratic societies can have reasonable, differing views on the matter. But others argue “the freer the speech, the stronger the democracy.”

But I think a more compelling question to ask our students is if they trust our government — and future governments — to decide what is offensive. Some European countries do, and this suggests that democratic societies can have reasonable, differing views on the matter. But others argue “the freer the speech, the stronger the democracy.”

In my experience, my more liberal students are quick to say the government should ban offensive speech, and my more conservative students believe everyone is afraid to speak because of “political correctness.”

To even begin a meaningful conversation, students first need the facts, and Constitution Day is a great time to provide them.

I recommend starting by clarifying that the First Amendment is about how the government doesn’t have a right to censor or punish speech; it has no bearing on how private citizens, companies or employers choose to react. White supremacists’ constitutional right to speak will not shield them from counter-protests, public humiliation via social media or personal consequences, such as being fired by a private employer. Similarly, social media platforms owned by private companies such as Facebook or Twitter are not public forums set up by the government, so they have the right to censor any content they deem offensive.

This leads into the second point: the danger in giving the government the power to censor is that there isn’t a common understanding of “offensive.”

In a blog post explaining why the ACLU filed a lawsuit defending provocateur Milo Yiannopoulos’ speech, James Esseks, Director of the LGBT & HIV Project, expressed the deep divide between Yiannopoulos’ hateful speech and the ACLU’s core values: “Here at the ACLU, we vehemently disagree with Mr. Yiannopoulos’ views. We work hard, every day, with the very communities he targets, to fight for equal rights and dignity for all. We recognize that his words cause grievous pain to many individuals, their families, and their loved ones.”

However, he goes on to write, “Without free speech protections, all civil rights advocacy could be shut down by the people in power, precisely because government doesn’t agree with the ideas activists advance. That was true of the civil rights fights of the past, it’s true of the movements facing pitched battles today, and it will be true of the movements of the future that are still striving to be heard.”

Many people believe speech about such issues as abortion, gender identity or sexuality are offensive, Esseks argues, and “if First Amendment protections are eroded at any level, it’s not hard to imagine the government successfully pushing one or more of those arguments in court.”

This is the heart of the First Amendment — the question of whether we trust the government to regulate our speech and define what is offensive and what is not, or if we want to retain that freedom ourselves.

This is the heart of the First Amendment — the question of whether we trust the government to regulate our speech and define what is offensive and what is not, or if we want to retain that freedom ourselves.

That said, student editorial boards are not “the government.” They can and should make ethical decisions about what to publish, and they have a right to refuse to publish hateful speech, though I would caution them to differentiate between “hate speech” and student opinions they dislike. They also have the right and the responsibility to act as ethical leaders who take informed positions in unsigned editorials.

The editorial board of the nationally award-winning Harbinger Online provides a great example of ethical leadership in response to hateful speech in their most recent editorial, “Burn the Eastonian.” The Eastonian is an underground student newspaper known for its “diabolical” and “abusive” attacks on and lies about students, teachers and administrators, and this editorial makes a compelling case to convince students to end this “most shameful tradition.”

This editorial demonstrates how punishment and censorship are seldom as powerful as more speech can be. According to the piece, this tradition has been going on for decades, despite threats of suspension, being banned from school activities or legal consequences (I assume for the libel, which is a form of unprotected speech).

These deterrents didn’t end the Eastonian last year, but the Harbinger’s passionate editorial might. By naming the problem, humanizing the victims, explaining the consequences — not just to the perpetrators if they get caught, but also to those defamed and to the reputation of the school — and providing examples of prominent students in the community who have pledged to take no part in the Eastonian, the Harbinger editorial board has shown the power of more speech in the face of hate.

Schools across the nation will celebrate Constitution Day on Monday, Sept. 18, this year. I urge you to use this opportunity to bring to the surface difficult conversations about hate speech and the First Amendment.

In addition to the resources I’ve linked to in this blog, you should also check out the JEA Scholastic Press Rights Committee’s 2017 Constitution Day lessons.